In order to elucidate the principles established in those recent
opinions, the Second Circuit in Iragorri v. United Technologies Corp.,
274 F.3d 65 (2d Cir. 2002), sitting en banc, fashioned a "sliding scale"
approach to determine the appropriate deference to be given to a
plaintiff's choice of forum. Id. at 71. According to that scale, "the
greater the plaintiff's or the lawsuit's bona fide connection to the
United States and to the forum of choice and the more it appears that
considerations of convenience favor the conduct of the lawsuit in the
United States," the more deference will be accorded plaintiff's choice of
a U.S. forum, and "the more difficult it will be for the defendant to
gain dismissal for forum non conveniens." Id. at 72 (footnotes omitted).
To help guide future analysis, the Court identified the following factors
as examples of factors that militate against forum non conveniens
dismissal:

the convenience of the plaintiff's residence in
relation to the chosen forum, the availability of
witnesses or evidence to the forum district, the
defendant's amenability to suit in the forum
district, the availability of appropriate legal
assistance, and other reasons relating to
convenience or expense.

Id. On the other hand, the Court stated that forum non conveniens
dismissal will be most appropriate where:

plaintiff's choice of a U.S. forum was motivated by
forum-shopping reasons — such as attempts to
win a tactical advantage resulting from local laws
that favor the plaintiff's case, the habitual
generosity of juries in the United States or in the
forum district, the plaintiff's popularity or the
defendant's unpopularity in the region, or the
inconvenience and expense to the defendant resulting
from litigation in that forum.

Id.

In the actions currently before the court, three distinct plaintiff
groups are present. See supra note 1. The first plaintiff group consists
of the plaintiffs in the Cornell and Schenker class actions, who filed
their class-action complaints in this court in the first instance. of the
named Cornell plaintiffs, two live in New York, one lives in Texas, and
one lives in California. (Cornell Second Am. Compl.) of the named
Schenker plaintiffs, two are residents of New Jersey, two are residents
of Florida, and one is a resident of California. (Schenker Corrected Am.
Compl.) Both the Cornell and Schenker class action complaints were
recently amended to exclude all claims against German Corporations in
accordance with the German Foundation settlement between the German and
American governments. See infra p. 11-12 & n. 6. Prior to those
amendments, 22 of the 39 named plaintiffs in the Cornell and Schenker
actions were residents of New York. (Cornell Am. Compl.; Winters Compl.)

The second plaintiff group present in this action consists of the
Brauns, Mandil, Weiss, David, Szekeres, Lightner, and Sladek plaintiffs
and the named and unnamed plaintiffs in the Haberfeld and Smetana class
actions — all of whom originally filed their lawsuits in their home
forums, but whose cases have since been transferred to this district
after Generali's successful motion before the MDL panel.*fn3 These
plaintiffs are not only U.S. residents who seek a U.S. forum, but they are
also U.S. residents who originally sought to litigate in their home
district within the United States.*fn4 According to Koster, a resident's
choice to sue in his or her home forum is generally entitled to great
deference. See Koster, 330 U.S. at 524; Iragorri, 274 F.3d at 71. Such
deference is not diminished because defendant has forced plaintiffs to
litigate in a different forum by effecting a transfer before the MDL
panel. See DiRienzo II, 294 F.3d at 28-29 (noting the importance of
defendants' motions before the MDL panel in the Iragorri analysis); In re
Cinar Corp. Sec. Litig., 186 F. Supp.2d 279, 296 (E.D.N.Y. 2002) (same).
This deference is not diminished by the class-action status of the
Smetana and Haberfeld actions. See DiRienzo II, 294 F.3d at 28-29.

The third and last plaintiff group present in this action consists
solely of plaintiff Tabaksman, a British citizen living in Britain who
filed suit in New York State Supreme Court. His case was subsequently
removed to this district. Tabaksman's asserted justification for bringing
his suit in New York is that his claim is "substantially the same as
those asserted in the putative class action also pending in this Court."
(Tabaksman Mem. at 1) He claims that "[i]f the Court denies the motions
to dismiss the other Generali cases, there will be no additional burden
to Generali in defending against Tabaksman's claim in this Court." (Id.
at 4) However, the fact that other related actions are pending in a given
district court in the United States is not a factor in the forum non
conveniens analysis used to determine the appropriate level of deference
in Iragorri. Tabaksman does not live in the United States, he is not a
U.S. citizen, and if he testifies as a witness, it will be inconvenient
for him to travel here from Britain. In short, he has no bona fide
connection to the forum. His decision to file his own individual lawsuit
in this district is therefore entitled to little deference.

The court thus accords great deference to all plaintiffs' choices of
forum, except for plaintiff Tabaksman. As for those plaintiffs entitled
to strong deference, defendants must make a strong showing of
inconvenience in order to prevail. See Iragorri, 274 F.3d at 74-75.

A. Forum Non Conveniens Dismissal in Favor of ICHEIC

Both Generali and Zurich first argue that this court should dismiss
plaintiffs' claims on the g round of forum non conveniens in favor of the
International Commission on Holocaust Era Insurance Claims ("ICHEIC").
Because ICHEIC is not an adequate alternative forum for the litigation of
plaintiffs' claims, defendants' forum non conveniens motions are denied
with respect to ICHEIC.

In holding that ICHEIC is not an adequate forum for the purposes of
defendants' forum non conveniens motions, the court does not intend to
denigrate the work that defendants, Secretary Eagleburger, and the state
insurance commissioners have put into crafting ICHEIC. I am mindful of
the size of their task and the challenges they face. ICHEIC ultimately
may be the most expeditious forum for the resolution of plaintiffs'
Holocaust-era insurance claims. See In re Austrian and German Bank
Holocaust Litig., 80 F. Supp.2d 164, 174-75, 177-78 (S.D.N.Y. 2000)
(noting the complexity, expense, duration, and risk of pursuing
Holocaust-era claims through litigation), aff'd. sub nom. D'Amato v.
Deutsche Bank, 236 F.3d 78 (2d Cir. 2001); see also In re Holocaust
Victim Assets Litig., 105 F. Supp.2d 139, 148-49 (E.D.N.Y. 2000)
(cautioning that "strong moral claims are [not] easily converted into
successful legal causes of action"). But whatever ICHEIC's virtues, and
whatever the, convenience of that forum relative to this court,
plaintiffs have chosen to pursue their claims through litigation in a
public forum. Unless and until defendants can convince plaintiffs that
ICHEIC offers the best forum for resolution of their claims, it is not
this court's place to force plaintiffs into a private nonjudicial forum
created by defendants and subject to considerable uncertainties.

The private interest factors in this case favor retention of
jurisdiction in this court.*fn10 Litigation in this forum does present a
number of legitimate obstacles for defendants arising from lack of access
to documents and witnesses located in Europe and inability to implead
third parties located abroad. However, forcing litigation of plaintiffs'
claims in at least seven different European countries would likely
increase the costs to both sides and impose such a great inconvenience on
plaintiffs that it is doubtful they could continue to prosecute their
claims.

Only plaintiffs Marc Rubinstein and Henry Shery*fn11 have made claims
against Zurich; those plaintiffs allege that family members living in
Poland were denied insurance benefits. (Schenker Corrected Am. Compl.
¶¶ 9-10) Zurich states that to the extent that any documentary or
testimonial evidence exists with respect to plaintiffs Rubinstein and
Shery's claims, that evidence is located either at the company's
headquarters in Switzerland or in the unspecified country where
Rubinstein and Shery's policies were sold. (Landolt Decl. of 6/7/01
¶¶ 7-11)

Most other plaintiffs have sued Generali with respect to policies that
were sold in the following countries: Italy, Poland, Czechoslovakia,
Hungary, Austria, Yugoslavia, and Latvia. (Catalanotti Decl. of 5/23/02
¶ 135; Carnicelli Decl. of 1/9/02 ¶ 11; Velie Rep. Decl. of 1/8/02
Ex. K) Generali states that all original policies were held locally at
branch offices throughout Europe. (Catalanotti Decl. of 5/23/02 ¶ 17)
To the extent that those documents still exist, they are now "in the
archives of the state-run insurance companies which took over Generali's
branch offices after World War II." (Id. ¶ 21) Generali's
headquarters office in Trieste, Italy also contains an abundance of
relevant documents such as: 1) water copies (similar to a carbon copies)
of the original insurance policies; 2) policy "abstracts" (typically in
German) reproducing the key terms and conditions of the original policy;
3) copies of the General Terms and Conditions in effect when the relevant
policies were issued; and 4)a statistical ledger called "stato fine,"
detailing the policies in force at the end of each year after 1936. (Id.
¶¶ 18-19) Generali speculates that any witnesses who might have
knowledge of the insurance claims at issue — mainly former or
current employees of Generali or the state-run companies that took over
its Eastern European branches — are located in Europe and do not
speak English as their first language. (Id. ¶¶ 154-56).

Generali and Zurich contend that transfer of this evidence from Europe
to this forum will be impossible because compulsory process here cannot
compel the production of documents or witnesses under the control of
Eastern European governments and state-run insurance agencies in those
countries, and in any event, inconvenient and expensive, even were such
process available. (Defs.' Cornell Mem. of 11/21/97 at 20-22; Defs.'
Winters Mem. of 7/30/99 at 10; Defs.' Winters Rep. Mem. of 12/15/99 at
13) Furthermore, because the relevant documents will be written in
— and the relevant witnesses will speak — European
languages, defendants assert that the translation expenses associated
with trial in this forum would be exorbitant. (Id.) Defendants note that
even where witnesses can be deposed abroad through the Hague Convention
on the Taking of Evidence Abroad, Mar. 18, 1970, 28 U.S.C. § 1781
(2000), 847 U.N.T.S. 231, this Circuit has expressed a preference for
live witness testimony where possible. See Alfadda, 159 F.3d at 48;
Schertenleib v. Traum, 589 F.2d 1156, 1165 (2d Cir. 1978)

First, it is not uncommon in international litigation for documents or
witnesses to be located abroad. As Judge Sterling Johnson recently
observed in a case involving similar claims arising from the retention of
Jewish assets by French banks during Holocaust era:

[T]he advances of modern technology and the
development of a global economy with instant access
to information worldwide severely undercut
defendants' claim of forum non conveniens. . . . The
costs involved to defendants in defending this
action in New York are significantly mitigated by
the time and money-saving tools including e-mail,
fax, scanners, digital photography, and global
access to the internet.

Second, the need to tap international sources of evidence is plainly
unavoidable in this litigation. Evidence in this case exists primarily in
three locations: in the Eastern European countries where Generali's
branch offices were located; at Generali and Zurich's headquarters in
Trieste, Italy and Switzerland respectively; and in the hands of the
named American plaintiffs in this action and the rest of the presumed
plaintiff class. There is no reason to believe that any more of the
evidence in this case will be located in Eastern Europe — where
defendants seek to litigate — than anywhere else. In fact, the
existence of any evidence at all in Eastern Europe is highly uncertain.
Generali has expressed the belief that "the documents stored at certain
of Generali's former European offices were completely destroyed or lost
either as a result of the devastation of World War II or from the events
following the war." (Catalanotti Decl. of 5/23/01 ¶ 21 & n. 3) It
is also unclear who, if anyone, in Eastern Europe might have personal
knowledge relevant to plaintiffs' claims, 70 years after most of the
policies in question were issued. On the other hand, Generali is currently
aware of millions of potentially relevant documents located in a
warehouse in Trieste, and the evidence that has been produced from
Generali thus far has come from Trieste. (Id. ¶¶ 152-53) Significant
evidence is also located in this country, much of it in English, as many
of the plaintiffs will likely proffer documents and testimony to buttress
their claims.

To the extent that the millions of documents from Trieste are sought in
European countries outside Italy, they will have to be transported and
perhaps even compelled through international processes. Documents from
Trieste that are relevant as a general matter to all actions would have
to be reproduced six different times and translated into the various
languages of each of the other European forums if this case were
dismissed. Similarly, any European witness with information relating to
all actions, such as Catalanotti of Generali, who has made a declaration
in this case, would have to testify seven different times in seven
different forums. Even if litigation were to occur in Italy or
Switzerland, where the companies' headquarters are located, the parties
still would
have to transport and perhaps compel documents and witnesses
located in Eastern Europe and the United States.

Finally, that witnesses reached through the Hague evidence-gathering
process cannot be forced to give live testimony before this court is not
compelling. First, defendants have not even established that those
witnesses will be unwilling to travel voluntarily to this district. See
Bravo Co. v. Chum Ltd., 60 F. Supp.2d 52, 57-58 (E.D.N.Y. 1999); Manela
v. Garantia Banking Ltd., 940 F. Supp. 584, 592-93 & nn. 14-15
(S.D.N.Y. 1996); Flynn v. Gen. Motors, Inc., 141 F.R.D. 5, 10 (E.D.N.Y.
1992). Furthermore, although live testimony is generally preferable, see
supra p. 27, the need for live testimony is less compelling in this case
than in many others because the credibility of the various witnesses
defendants plan to call is not the threshold issue. Cf. Alfadda, 159 F.3d
at 48 (holding that live testimony was essential in a fraud case to allow
"the trier of fact [to] assess the witnesses' demeanor"); Howe v.
Goldcorp Invs., Ltd., 946 F.2d 944, 952 (1st Cir. 1991) (holding that
live testimony is especially important where "fraud and subjective intent
are elements of the claim"); Schertenleib, 589 F.2d at 1165 (holding that
live testimony is essential where the crux of the litigation is "the
truth or falsity of defendant's charges that plaintiff is a swindler").
In this case, both parties' greatest challenge will likely be finding
witnesses with any knowledge at all of the insurance policies in
question; the credibility of those witnesses will not necessarily be the
basis on which plaintiffs' claims rise or fall.

Impleader is not a great concern in this case because, even if
defendants are forced to litigate here and could not implead various
Eastern European governments and state-run insurance agencies, they could
still offer nationalization as a defense to plaintiffs' claims and could
bring a subsequent action for contribution or indemnification against
third parties in Europe. See Derensis v. Coopers & Lybrand Chartered
Accountants, 930 F. Supp. 1003, 1012 (D.N.J. 1996); Volkswagen de
Mexico, 1991 WL 230622, at *4. Being forced to litigate the
nationalization issue separately would not be prejudicial because the
question whether Zurich and Generali reneged on contractual obligations
to plaintiffs and their heirs is conceptually separate from the question
whether several Eastern European governments should be liable to
defendants for assets nationalized in the post-war era. See Oliva v. Pan
Am. Life Ins. Co., 448 F.2d 217 (5th Cir. 1971) (rejecting the notion
that the nationalization of assets might excuse an insurer of its
obligation to insureds); Pan-Am. Life Ins. Co. v. Blanco, 362 F.2d 167
(5th Cir. 1966) (same). The two issues are related in that defendants'
nationalized assets might have been used to fulfill any obligations to
plaintiffs, but the evidence relevant to each issue will be different.
Defendants would not be disadvantaged by being forced to litigate the
issues separately. See Olympic Corp., 462 F.2d at 379 ("[T]he difference
in the legal issues . . . is such that it is unlikely that a separate
trial of the matters will produce inconsistent results."), cited in
Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 343-44 (8th Cir. 1983)
("[I]t is not likely that separate trials of the claims would require
much duplication of proof or result in inconsistent judgments.")

c. Enforceability of a Class Action Judgment Abroad —

Defendants are also concerned, with respect to the Cornell, Schenker,
Smetana, and Haberfeld class actions, that any class action judgment in
the United States will not be given preclusive effect in European
courts.*fn13 (Fumagalli Decl. ¶ 39; Wisniewski Decl. of 5/23/01
¶¶ 40-41; Sodomka Decl. ¶¶ 37-38; Hajdu Decl. ¶¶ 42-43; Kodek
Decl. ¶¶ 45-48; Vischer Decl. of 11/20/97 ¶¶ 49-50) Defendants fear
that even if they litigate and win a judgment in this forum, the unnamed
members of the losing class could simply relitigate their claims in
various European courts. Cf. Bersch v. Drexel Firestone, Inc.,
519 F.2d 974, 996 (2d Cir. 1975) ("[I]f defendants prevail against a
class they are entitled to a victory no less broad than a defeat would
have been."). However, defendants' argument does not weigh heavily in the
balance at this point in the litigation because it is not yet clear who
will comprise the plaintiff class or classes.

In light of all the above factors, plaintiffs' contention that being
forced to litigate in Europe would be the death knell for their claims
may not be an exaggeration. See Irish Nat'l Ins. Co. v. Aer Lingus
Teoranta, 739 F.2d 90, 91 (2d Cir. 1984) (holding that forum non
conveniens dismissal is inappropriate where trial in alternative forum
will realistically never occur); Manu Int'l, S.A. v. Avon Prods., Inc.,
641 F.2d 62, 67 (2d Cir. 1981) (same); McKrell, 703 F. Supp. at 14-15
(same) "It will often be quicker and less expensive to transfer a witness
or a document than to transfer a lawsuit." Manu Int'l, 641 F.2d at 65.
This risk is particularly strong in this case, in which twelve different
actions have been filed and consolidated in this court as part of legal
proceedings that have been underway for over five years. A forum non
conveniens dismissal would involve splitting up this consolidated action
— which involves common facts and legal issues — into at
least seven different cases and moving those cases into seven different
foreign legal systems for proceedings in seven different languages. The
private interest factors in this case thus weigh heavily in plaintiffs'
favor.

With respect to the first of the public interest factors —
congestion in the courts — this phenomenon is encountered the world
over. Plaintiffs have submitted evidence indicating that the courts of at
least one European forum (Italy) are congested. (Mattei Decl. ¶¶ 6-8)
At the same time, this court has noted that congestion is a "persistent
affliction." See DiRienzo, 49 F. Supp.2d at 642 (quoting DeYoung v.
Beddome, 707 F. Supp. 132, 139 (S.D.N.Y. 1989)) (internal quotation marks
omitted), rev'd on other grounds, DiRienzo I, 232 F.3d 49. Docket
congestion is a factor that weighs neither in favor of dismissal nor
retention of plaintiffs' claims in this district.

As far as the local interest in these cases, all potential forums in
this case have some interest in the subject matter. The seven European
forums under consideration all have an interest because the material
events that gave rise to plaintiffs' claims occurred in those countries.
Those forums also have an interest in redressing the harms inflicted by
the Holocaust, which occurred on European soil. On the other hand, the
United States and New York have a strong localized interest in providing
relief to their residents, who allegedly have been injured by defendants'
wrongful acts during the Holocaust era. "Public Policy favors a forum in
which United States citizens may seek to redress an alleged wrong."
Bodner, 114 F. Supp.2d at 133 (quoting Am. Home Assurance Co., 603 F.
Supp. at 642) (internal quotation marks omitted).

However, the interest of this forum in plaintiffs' claims is stronger
because New York State has expressed a public policy interest in those
claims through the New York Holocaust Victims Insurance Act of 1998
("HVIA"), N.Y. Ins. L. § 2701 et. seq. (McKinney 2000), whereas the
connection between those claims and the relevant European forums relates
primarily to 70-year old insurance transactions between deceased emigrants
and a multinational insurance conglomerate. The New York HVIA explicitly
states that no action concerning Holocaust-era insurance claims arising
between 1929 and 1945 shall be dismissed from the New York State courts
on the ground of forum non conveniens (under N.Y. C.P.L.R. § 327),
N.Y. Ins. L. § 2704(b), and it extends the state's statute of
limitations on Holocaust-era insurance claims, N.Y. Ins. Law §
2704(a). The statute also imposes reporting requirements on
New-York-licensed insurance companies regarding their payment of
Holocaust-era insurance claims. N.Y. Ins. Law § 2705.*fn16
Although the forum non
conveniens provision of the HVIA is not binding on this court, most
directly because the N.Y. C.P.L.R. does not govern forum non conveniens
dismissal in federal court, the provision does expressly indicate the
state's desire to commit judicial resources to the litigation of
plaintiffs' claims.*fn17 It is hard to imagine a more clear indication
that this forum has a strong public interest in the litigation of
plaintiffs' claims than a piece of legislation explicitly stating that
interest. See Red Bull Assocs. v. Best Western Int'l, Inc., 862 F.2d 963,
966-67 (2d Cir. 1988) (noting the public policy significance of a "clear
statutory declaration" that certain types of legal actions are to be
encouraged); Bodner, 114 F. Supp.2d at 133 (noting, in denial of a forum
non conveniens motion, that New York State had expressed a public policy
interest in Holocaust litigation through the Governor's executive
order). In the absence of any similar public sentiment in the alternative
European forums under consideration in this case, or a more tangible
present-day connection to the subject matter of plaintiffs' claims, this
forum has the stronger public interest in adjudication of plaintiffs'
claims.

That this forum has the greater interest in the litigation of
plaintiffs' claims is only somewhat diminished by the probable need to
apply foreign law. Under New York choice-of-law rules, which govern in a
federal diversity case, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496 (1941), New York substantive law applies unless there is a true
conflict requiring a conflicts analysis. Matter of Allstate Ins. Co.
(Stolarz), 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 905 (1993). Given that
punitive damages are not available in most civil-law systems, and that the
seven civil-law European forums that defendants advocate do not have
causes of action identical to those in our common law courts, there would
seem to be a need for a choice of law analysis in this case.*fn18 Under
New York's "center of gravity" or "grouping of contacts" approach to
conflicts, it seems likely that foreign law will apply to this
dispute.*fn19
At this stage of the litigation, however, it is
unnecessary to resolve choice-of-law questions. See PT United,
1997 WL 31194, at *10; Flynn, 141 F.R.D. at 10.

Defendants argue, dramatically, that "the relevant [foreign] laws arise
in many different nations . . ., cover a period of many decades, concern
an industry highly regulated under local law, and embrace highly
sensitive issues of public policy (such as the impact of claims and
payments made under post-war restitution programs)." (Defs.' Winters Mem.
of 7/30/99 at 9). However, we are dealing here with a lawsuit to enforce
insurance policies, not a proceeding to regulate the insurance business
in foreign countries. These policies are governed by law in effect at a
particular time, to be determined, not by laws over decades. Further, five
of the seven countries at issue in this motion have changed regimes at
least twice since the 1930s, and it is not clear that even a foreign
court examining plaintiffs' claims would be entirely "at home with the
. . . law that must govern." Gilbert, 330 U.S. at 509; see Generali Mem. of
5/25/01 at 22 (noting that in this case, "the applicable foreign laws are
more often than not the laws that were in effect more than half a century
ago." (citing foreign law experts)). Still further, any public policy
issues presented by post-war restitution programs will be no less
daunting to foreign courts than to this court. Whatever the forum,
historical legal experts likely will be needed to sort out potentially
applicable laws. Furthermore, unlike cases in which a strong local
interest in regulatory policy is implicated, see, e.g., Dowling v.
Richardson-Merrell, Inc., 727 F.2d 608, 616 (6th Cir 1984), the antiquity
of many of the laws involved in the present case make it unlikely that
any ruling by this court will interfere with the current regulatory
regimes that govern modern European insurance law.

Because the public interest factors in this case weigh slightly in
plaintiffs' favor, and because, as discussed above, the private interest
factors weigh more heavily in plaintiffs' favor, the balancing of the
conveniences in this case does not require dismissal, particularly in
light of the strong deference due plaintiffs' choice of forum. Generali
and Zurich's motions to dismiss are therefore denied with respect to all
plaintiffs. Plaintiff Tabaksman's case is analyzed immediately below.

(1) if their incorporation into the agreement was
the result of fraud or overreaching [citing Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595
(1991)]; (2) if the complaining party "will for all
practical purposes be deprived of his day in court,"
due to the grave inconvenience or unfairness of the
selected forum [citing M/S Bremen, 407 U.S. at 18];
(3) if the fundamental unfairness of the chosen law
may deprive the plaintiff of a remedy [citing
Shute, 499 U.S. at 595]; or (4) if the clauses
contravene a strong public policy of the forum state
[citing M/S Bremen, 407 U.S. at 15].

The result generated by conventional forum non conveniens analysis
appears more appropriate here than it might be in other cases because it
is impossible to conclude in many instances in this case that enforcing a
forum selection clause would accurately reflect the expectations of the
parties to the original insurance agreements. A forum selection clause
allows parties to eliminate uncertainties "by agreeing in advance on a
forum acceptable to both parties," M/S Bremen, 407 U.S. at 13-14.
Enforcement serves to "give effect to the legitimate expectations of the
parties." Id. at 12. Because the present-day European forums specified in
the forum selection clauses in this case are so materially different from
the forums in which the parties agreed to litigate between 1912 and
1941, enforcement of those clauses could not reasonably fulfill the
"expectations of the parties," and therefore would be unreasonable under
the circumstances.

As indicated above, the Generali insurance policies relevant to
plaintiffs' claims were all issued sometime between 1912 and 1941, with
forum selection clauses mandating litigation in the courts of Austria,
Czechoslovakia, Italy, Poland, Hungary, or Yugoslavia. See supra note
22. The one thing that each of those countries has in common is that
each, even ignoring the chaos of World War I, has changed regimes at
least once, and some several times, since 1935.

For the reasons explained above, Generali's and Zurich's motions to
dismiss on the ground of forum non conveniens are denied with respect to
all plaintiffs, and with respect to both ICHEIC and the relevant European
forums where plaintiffs' claims arose. In addition, Generali's motion to
dismiss on the ground of contractual forum selection is denied because
the applicable forum selection clauses are not enforceable. The court
will contact the parties to set a conference to schedule further
proceedings in this consolidated action, including but not limited to
discovery. Counsel are directed to confer prior to that conference, with
respect to a schedule for discovery and other pretrial procedures, and to
be prepared to fix such a schedule at that conference.

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